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The Estate of Alan Bruce Beeby

The Estate of Alan Bruce Beeby

Case [2020] NSWSC 1512 29 October 2020

Probate of Will

Presumption of Death

Balance of Probabilities

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: The Estate of Alan Bruce Beeby [2020] NSWSC 1512
Hearing dates: In Chambers and on the papers
Date of orders: 29 October 2020
Decision date: 29 October 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(a) Declares that the Court is satisfied that Alan Bruce Beeby died on 26 January 2020, during a voyage to a port in the State of New South Wales.
(b) Orders that subject to compliance with the Probate rules of Court, Probate in common form of the Will dated 17 November 2017 of Alan Bruce Beeby be granted to the Plaintiff.
(c) Dispenses with the requirement to file a death certificate of Alan Bruce Beeby, unless and until a notice given by a coroner under ss 34(1) or (2) of the CoronersAct2009 (NSW) for the purpose of effecting, or completing, registration of the death is issued.
(d) Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.
(e) Orders that the Plaintiff’s costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Alan Bruce Beeby.

Catchwords:
SUCCESSION – Probate and administration – Practice and procedure – Probate of Will – Where person travelling on vessel which capsized – Where he entered the sea and then not seen again – Extensive searches conducted in an attempt to locate the person – Where no body found – No death certificate issued – Whether Court is able to order issue of death certificate – Registrar of Births, Deaths and Marriages joined as party – Submitting appearance entered – Whether Probate required to be granted on presumption of death or whether evidence established on balance of probabilities that death has occurred without need for words “on presumption of death” to be included on Probate – Court satisfied on balance of probabilities of the death

Legislation Cited:
Births, Deaths and Marriages Registration Act 1995 (NSW), ss 36, 37, 38, 39, 49
Coroners Act 2009 (NSW), s 34
Probate and Administration Act 1898 (NSW), ss 40, 40A
Supreme Court Act 1970 (NSW), s 75
Uniform Civil Procedure Rules 2005 (NSW), r 6.11

Cases Cited:
Application by Walsh & Anor (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976
Axon v Axon (1937) 59 CLR 395; [1937] HCA 80
Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9
Chard v Chard [1956] P 259
Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519
Clarence City Council v Commonwealth of Australia (2020) 382 ALR 273; [2020] FCAFC 134
Crawford v Davidson-Crawford [2019] NSWSC 728
Croft v Dunphy [1933] AC 156
D v Commissioner of Taxes [1941] St R Qd 218
Estate of Lyn Burtonwood [2020] NSWSC 715
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61
Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development (2018)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Estate of Alan Bruce Beeby

Details

AGLC: The Estate of Alan Bruce Beeby [2020] NSWSC 1512
Case: [2020] NSWSC 1512
Decision Date: 29 October 2020

CaseChat Overview and Summary

The matter involved the estate of Alan Bruce Beeby, who was lost at sea when a vessel he was travelling on capsized. The dispute was about whether the court should issue a death certificate for Mr Beeby, and if so, whether the probate of his will should be granted on the presumption of death or if the evidence established his death on the balance of probabilities. The matter was heard in the Supreme Court of New South Wales. The Registrar of Births, Deaths and Marriages was joined as a party and entered a submitting appearance.

The legal issues before the court were whether it had the jurisdiction to order the issue of a death certificate for Mr Beeby, who had not been found after extensive searches, and if the court was satisfied on the balance of probabilities of his death, whether probate of his will should be granted on the presumption of death or without the need for the words “on presumption of death” to be included on the probate. The court needed to determine whether the evidence established Mr Beeby's death on the balance of probabilities.

The court held that it had the jurisdiction to order the issue of a death certificate for Mr Beeby, who had not been found after extensive searches. The court was satisfied on the balance of probabilities of his death, and therefore, it was not necessary to include the words “on presumption of death” on the probate. The court noted that the Registrar of Births, Deaths and Marriages had the power to issue a death certificate, and the court could order the issue of a death certificate in appropriate circumstances. The court was satisfied that the evidence established Mr Beeby's death on the balance of probabilities and that it was not necessary to include the words “on presumption of death” on the probate.

The court ordered that a death certificate be issued for Mr Beeby and that probate of his will be granted without the need for the words “on presumption of death” to be included on the probate. The court held that the evidence established Mr Beeby's death on the balance of probabilities, and therefore, it was not necessary to include the words “on presumption of death” on the probate. The court further held that it had the jurisdiction to order the issue of a death certificate for Mr Beeby, who had not been found after extensive searches.

Orders